Murphy v. National Collegiate Athletic Assn.

Majority reasoning

The majority held that when New Jersey partially repealed its ban on sports gambling, it "authorized" that activity under the ordinary meaning of the term, because authorization only makes sense against a backdrop of existing prohibition. The Court reasoned that the Constitution gives Congress power to regulate individuals directly, not to command state legislatures what laws they may or may not pass, and that this anticommandeering principle applies equally whether Congress orders a state to act or forbids it from acting—the distinction between commanding and prohibiting is "empty." The majority found that PASPA's ban on state authorization directly controls state legislatures as if federal officers were installed in the statehouse, and that this cannot be justified as valid preemption because preemption requires regulating private parties, which this provision does not do. Finally, the Court concluded that none of PASPA's other provisions—covering state operation, sponsorship, promotion, private conduct, or advertising—could survive alone, because Congress designed the statute to work as an integrated scheme and it is unlikely Congress would have wanted these pieces to operate independently once the core authorization and licensing bans fell. In a footnote responding to Justice Ginsburg's severability critique, the majority stated that leaving the private-conduct provision in place while striking the state-authorization provision would create a "weird" and "perverse" policy under which private sports gambling would be illegal only in states that chose to legalize it, an outcome Congress could not have intended.

Dissent reasoning

Justice Ginsburg, joined by Justice Sotomayor and in part by Justice Breyer, agreed that the provision barring states from authorizing or licensing sports gambling was unconstitutional but argued the majority went too far by striking down the entire statute. She argued that PASPA's other provisions—banning states from operating, sponsoring, or promoting sports gambling, and banning private parties from doing so pursuant to state authorization—do not command states to do anything beyond obeying a straightforward federal prohibition, so the anticommandeering concern does not apply to them. She contended that Congress clearly has power to regulate gambling nationally, and that the Court should use a "scalpel" rather than an "ax," severing only the unconstitutional authorization and licensing provisions while leaving the remaining prohibitions on state and private operation intact. She wrote that it is not credible to conclude Congress would have preferred no statute at all rather than one that simply stops states and private parties from running sports gambling operations, and that the majority's severability analysis rested on the mistaken premise that private sports gambling would become lawful once the authorization ban fell.